Virginia Sue Price v. Charles Raymond Price

Virginia Sue PRICE v. Charles Raymond PRICE

98-368 ___ S.W.2d ___

Supreme Court of Arkansas

Opinion delivered April 29, 1999

1. Divorce -- death of party -- nullifies validity of divorce decree. -- The death of a party nullifies the validity of a subsequent divorce decree; however, it is not necessary to appeal from a void order because it never became effective; a void order is subject to collateral attack.

2. Appeal & error -- divorce decree void -- motion for rule on clerk denied. -- Where appellant's notice of appeal was not filed within thirty days of the final decree as required by Ark. R. App. P.--Civil 4(a), the fact that appellant's husband died prior to the decree of divorce being entered of record was not a valid reason for a rule on the clerk; the motion for rule on the clerk was denied.

Motion for Rule on Clerk; denied.

Arnold, Arnold & Potter, by: Clarke D. Arnold, for appellant.

No response.

Per Curiam.

Appellant Virginia Sue Price moves for a rule on the clerk and shows the court the following facts. On June 17, 1997, a divorce decree involving the appellant and her husband, Charles Raymond Price, was signed by the trial court. On August 8, 1997, Charles Raymond Price died. On June 19, 1998, the divorce decree was entered of record, and on December 11, 1998, a notice of appeal was filed by the appellant.

The notice of appeal was clearly not filed within thirty days of the final decree as required by Ark. R. App. P.--Civil 4(a). The appellant, however, cites this court to the case of Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984), for the proposition that the death of a party nullifies the validity of a subsequent divorce decree. We agree that that is the holding of the Childress case. In Childress, however, we also said: "It is not necessary to appeal from a void order because it never became effective. A void order is subject to collateral attack." (Citing authority.) Childress, 282 Ark. at 258, 668 S.W.2d at 11.

The motion for rule on the clerk is denied. The appellant's remedy, as stated in Childress, is to attack the void divorcedecree collaterally.